On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, 03-05-0970-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 21, 2007
Before Judges Lisa and Holston, Jr.
Defendant appeals from an order denying his petition for post-conviction relief with respect to his conviction under Atlantic County Indictment No. 03-05-0970 for second-degree robbery, N.J.S.A. 2C:15-1, for which defendant was sentenced to seven years imprisonment with an 85% parole disqualifier and three years parole supervision, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant's sole argument on appeal is that he "Received Ineffective Assistance of Counsel At the Post Conviction Relief Proceeding."
Defendant's conviction arose out of a guilty plea. The indictment charged first-degree armed robbery and other offenses. Defendant and the prosecutor entered into a plea agreement, by which the first-degree robbery would be amended to second-degree robbery, to which defendant would plead guilty, with a recommended sentence of seven years imprisonment subject to NERA. The agreement also provided that the other counts in the indictment would be dismissed. Further, defendant would plead guilty to a third-degree terroristic threats charge contained in an unrelated indictment, and would receive a recommended sentence of four years imprisonment. The two sentences would run concurrently. Defendant pled guilty and Judge Isman accepted his plea. At the conclusion of the plea proceeding, the judge informed defendant of the presentence interview process: "You'll be interviewed for a presentence report. Please make sure you give that person accurate, complete and updated information about yourself, because I will use that later in preparing to sentence you."
At sentencing, defense counsel advised the court that he had reviewed the presentence report with defendant and there were no "additions, deletions or modifications." Counsel confirmed with defendant that he reviewed each page of the report with him. When counsel asked defendant whether he had any comments regarding the report or anything else he wanted to tell the judge "that may be favorable to you that's not contained in the report," defendant said only, "I want to say I appreciate your leniency and patience on this case, and I know it took a long time, and I would just like to apologize for my actions."
Judge Isman found the presence of two aggravating factors and no mitigating factors. Although those findings would have justified a sentence greater than seven years, and although consecutive sentencing would have been permissible for these unrelated crimes against different victims, the judge accepted the recommendation in the plea agreement and imposed sentence accordingly.
Defendant did not appeal his conviction or sentence. He later filed a PCR petition and counsel was assigned to represent him. Counsel argued in the PCR proceeding that trial counsel was ineffective for failing to adequately argue against the aggravating factors the judge found and failing to argue that various mitigating factors should have applied. Judge Isman rejected the argument. The aggravating factors (risk of committing another offense and need for deterrence) were clearly supported by the record and properly applied. And, the judge explained why each mitigating factor was inapplicable. The judge therefore denied defendant's PCR petition.
On appeal, defendant argues that his PCR counsel was ineffective because the argument that should have been advanced was that trial counsel failed to explain to defendant the presentence report procedure and the necessity for defendant to be candid with the interviewer. In particular, defendant argues that had his attorney advised him to do so, he would have provided accurate information about his alcohol and drug addictions and the number of children (four instead of two) that he has and were dependent upon him, which would have resulted in mitigating factors that would have reduced the length of his sentence.
This argument is completely lacking in merit and does not warrant discussion in a written opinion. R. 2:11-3(e)(2). Judge Isman clearly advised defendant of the presentence procedure and instructed him to be candid in providing information. Thus, even if counsel was deficient for not repeating that advice to defendant, such deficiency would not have caused any difference in the outcome. Likewise, at the PCR proceeding, Judge Isman expressly found that his sentence would have been no different even if defendant had established the existence of the mitigating factors complained of on this appeal. That finding was well supported by the record. Therefore, under no circumstances would the second prong of the Strickland/Fritz*fn1 test have been met.